Case: 13-15432

Date Filed: 07/21/2014

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________
No. 13-15432
Non-Argument Calendar
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D.C. Docket No. 8:13-cr-00189-VMC-TGW-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus
HUBERT SANTIESTEBAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 21, 2014)
Before TJOFLAT, HULL and MARCUS, Circuit Judges.
PER CURIAM:

Case: 13-15432

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The sole issue in Hubert Santiestebans appeal of the sentences he received

in this drug-trafficking case is whether the District Court erred in denying him
relief under the safety valve provisions of the Sentencing Guidelines, U.S.S.G.
5C1.1 Section 5C1.1 provides, in pertinent part:
(a) Except as provided in subsection (b), in the case of an offense under 21
U.S.C. 841, 844, 846, 960, or 963, the court shall impose a
sentence in accordance with the applicable guidelines without regard to any
statutory minimum sentence, if the court finds that the defendant meets the
criteria in 18 U.S.C. 3553(f)(1)-(5) set forth below:
(1) the defendant does not have more than 1 criminal history point, as
determined under the sentencing guidelines before application of subsection
(b) of 4A1.3 (Departures Based on Inadequacy of Criminal History
Category);
(2) the defendant did not use violence or credible threats of violence or
possess a firearm or other dangerous weapon (or induce another participant
to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of
others in the offense, as determined under the sentencing guidelines and was
not engaged in a continuing criminal enterprise, as defined in 21 U.S.C.
848; and
(5) not later than the time of the sentencing hearing, the defendant has
truthfully provided to the Government all information and evidence the
defendant has concerning the offense or offenses that were part of the same
course of conduct or of a common scheme or plan, but the fact that the
defendant has no relevant or useful other information to provide or that the
Government is already aware of the information shall not preclude a
determination by the court that the defendant has complied with this
requirement.
(b) In the case of a defendant (1) who meets the criteria set forth in
subsection (a); and (2) for whom the statutorily required minimum sentence
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is at least five years, the offense level applicable from Chapters Two
(Offense Conduct) and Three (Adjustments) shall be not less than level 17.
A superseding indictment, in Count One, charged Santiesteban, Walter
Berrios, Jose Andujar, Fernando Games, Nelson Millan, and Abraham Gonzalez
with conspiring in violation of 21 U.S.C. 846 to violate 21 U.S.C. 841(a) by
distributing five kilograms or more of a mixture containing cocaine for a period
ending April 11, 2013, and in Count Two, charged the same individuals, with the
exception of Gonzalez, with intent to distribute and distribution of five kilograms
of cocaine on April 10, 2013, in violation of 21 U.S.C. 841(a). Santiesteban pled
guilty to both counts, and the District Court, denying him safety-valve relief
because he had not truthfully provided to the Government all the information he
had about the charged offenses, sentenced him to concurrent prison terms of 120
months on Count One and 60 months on Count Two. Santiesteban appeals his
sentences because he disagrees with the courts finding that he was not
forthcoming as 5C1.2 requires.
We use a clear-error standard to review a district courts factual
determination of whether a defendant qualifies for application of the 5C1.2
safety-valve provision. United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir.
1997). For a finding to be clearly erroneous, this Court must be left with a
definite and firm conviction that a mistake has been committed. United States v.
Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010) (citation omitted) (internal
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quotation marks omitted). As indicated above, the safety-valve provision permits a

district court, if a defendant meets five criteria, to sentence within the relevant
Guidelines range without regard to any statutory mandatory-minimum sentence.
See U.S.S.G. 5C1.2(a)(1)-(5). The criteria at issue here is the fifth criteria,
whether the defendant truthfully provided the government with all information
and evidence the defendant has concerning the offense or offenses that were part of
the same course of conduct or of a common scheme or plan. U.S.S.G.
5C1.2(a)(5). To satisfy the requirements of 5C1.2(a)(5), a defendant must
demonstrate that he has made a good-faith effort to cooperate with the government.
Cruz, 106 F.3d at 1557. The burden is on the defendant to come forward and to
supply truthfully to the government all the information he possesses about his
involvement in the offense, including information relating to the involvement of
others and to the chain of the narcotics distribution. Id. In determining the
truthfulness of a defendant, the district court must independently assess the facts
and may not rely on the Governments assertion of dishonesty. United States v.
Espinosa, 172 F.3d 795, 797 (11th Cir. 1999).
We conclude that the District Court did not clearly err in denying
Santiesteban safety-valve relief on the ground that he did not provide the
Government complete and truthful information regarding his offenses. The court
had ample evidence before it on which to find that Santiesteban had not been
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forthcoming. Gamess testimony, for example, which the court found credible,
showed that Santiesteban was untruthful. Games testified that Santiesteban sold
him close to 20 kilograms of cocaine and that Santiesteban had talked to him about
supplying cocaine to other buyers, about transporting around 25 kilograms to
Tampa at a time, and about how he had built a trap compartment in his car to hide
the drugs. Gamess testimony contradicted Santiestebans statements to Agent
Bessette that all the cocaine he ever sold amounted only to 10 grams and that he
never transported cocaine to Tampa, as Games said he did. Santiestebans
arguments to the contrary are contradicted by the record. His proffer to the
Government failed to satisfy 5C1.2(a)s fifth criteria; therefore, his sentences are
AFFIRMED.